Jan 15, 2008

Does Ford Own the Copyright in Your Photos?

According to the Black Mustang Club ["BMC"], the Ford Motor Company warned Cafe Press that the BMC's "calendar pics (and our club's event logos - anything with one of our cars in it) infringes on Ford's trademarks which include the use of images of THEIR vehicles." The founder/owner of the BMC website states that, "Ford claims that all the images, logos and designs OUR graphics team made for the BMC events using [the founder's car] are theirs as well." The BMC therefore is not going to produce its annual calendar featuring members' photos of their cars. More background is available on BoingBoing.net and Adrants.com.

This has led some to report that Ford is claiming copyright in all photos of Mustangs. While the letter from Ford's attorneys is not available, Ford likely is claiming only that the calendar infringes or dilutes Ford's trademarks. Cafe Press may be reacting this way to avoid litigation. Nevertheless, this caused confusion about what rights Ford may have.

Intellectual Property ("IP") is property for which the owner has specific legal rights, just like your car, house, and camera equipment. But IP is intangible; you cannot touch it. IP includes copyrights, trademarks, patents, and trade secrets. While similar, these types of IP have distinct differences. The two at issue here are copyrights and trademarks. Copyright is a legal form of protection granted by the U.S. Constitution for original works that include literary, dramatic, musical, artistic and photographic works. Copyright gives the author or creator the exclusive "right" to "copy" the original work.

Trademarks or servicemarks allow people to identify the source of goods or services, not the products or services themselves. When people see a recognizable trademark, they know where the product came from or who is providing the service. Trademarks can be names, symbols, packaging, the shape of a product, the colors of a product, the sounds, or scents associated with the product, or any combination of these.

My previous blogs dated November 18, 2006 and April 23, 2005 have addressed concerns about including trademarks in photographs. When the law is applied to this situation, Ford clearly has no copyright claim to your photographs of its cars. Ford may have a trademark infringement claim if your photo of its product causes confusion as to the source of the product or dilutes the trademark by blurring or tarnishment. This is for the lawyers to debate or for the courts to decide.

Ford may be short-sighted in its action because the public response has been negative. It's true that trademark owners must protect their trademarks to some extent or they risk losing the protection (for example, aspirin and escalator used to be trademarks that lost their protection - that's why Xerox wants you to make a photocopy, why Adobe wants you to edit (not "photoshop") an image, and why you are asked whether a Pepsi, rather than the Coke you ordered, is ok). However, it's doubtful that Ford would lose trademark protection for Mustang because of a club's calendar.